The refusal to execute a sale deed, after receiving an advance, constitutes a civil liability, and the complainant has the remedy of filing a civil suit for specific performance.

Rajesh Bindal, J.

1. Prayer in the present petition is for quashing of criminal complaint under Sections 420/406/120B IPC and all proceedings subsequent thereto initiated by the respondent against the petitioners.

2. Briefly, the facts are that the respondent filed a complaint against the petitioners on 10.01.2005. The allegations in the complaint are that the petitioners had agreed to sell their land measuring 11 kanals 0 marla comprised in Khewat No.17 Khatauni No. 21 situated in the revenue estate of Village Mehmadpur, Tehsil Jagadhri, District Yamuna Nagar vide agreement to sell dated 15.1.2002 for a total consideration of Rs. 3,25,000/-. It is further alleged that as the parties were relatives, the agreement to sell was not reduced into writing. A sum of Rs. 1,84,000/- was paid as earnest money on various dates upto 7.5.2002. The last date for execution of sale deed was fixed as 31.5.2002. However, inspite of request by the respondent/complainant, the petitioners refused to get the sale deed executed on 31.5.2002 and in fact thereafter, the land was sold to some other person. The complaint was filed on 10.1.2005 with, the allegation that neither the sale deed was got registered by the petitioners nor the amount of earnest money was refunded.

3. Learned counsel for the petitioners submitted that hare perusal of the facts stated by the respondent in the complaint shows that the same is nothing else but abuse of process of law. The reliance for filing the complaint against the petitioners is merely on oral agreement and there is no evidence of even payment of earnest money. Still further submission is that the dispute in the present case, if at all is civil in nature. Admittedly, the sale deed was to be executed on 31.5.2002, no civil suit was filed by the respondent/complainant and it was nearly after three years of the alleged oral agreement to sell and two years and eight months of the last date fixed for registration of the sale deed that the complaint was filed before the Court. The civil suit was not even filed thereafter and now the limitation for filing the same has already expired.

4. Relying upon judgment of Hon ble the Supreme Court in the case of Ram Biraji Devi and another V/s. Umesh Kumar Singh and another, AIR2006 SC 2035. prayer is for quashing of the complaint and all subsequent proceedings thereto.

5. On the other hand, learned counsel for the respondent/complainant submitted that the agreement to sell and the receipts for payment of the earnest money were not got executed in good faith as the parties were known to each other. However, he could not satisfactorily respond to the query of the Court as to why a civil suit was not filed immediately after the petitioners had refused to get the sale deed executed and further why even the complaint in question was filed nearly two and eight months of the alleged date for execution of the sale deed.

6. Having heard learned counsel for the parties and keeping in view the allegations in the complaint, I find merit in the contentions raised by learned counsel for the petitioners. The dispute in the present case is regarding non-execution of the sale deed by the petitioners. Even if the allegations made by the respondent/complainant regarding oral agreement and payment of earnest money without even getting the receipt therefor are accepted as such, there is no explanation for the complainants having not filed a suit immediately when the last date fixed for registration of the sale deed had expired and as per the allegations in the complaint, the petitioners had refused to get the sale deed executed. This is inspite of the fact that as per allegations in the complaint, more than 50% of the total consideration had been paid by the respondent/complainant in advance. The total sale consideration agreed upon was Rs.3,25,000/- out of which Rs. 1,84,000/- had been allegedly paid to the petitioners, still no steps were taken either to enforce the agreement to sell to g